99 Kan. 797 | Kan. | 1917
The opinion of the court was delivered by
John Jesch, the owner of a tract of farm land in Atchison county, rented it to G. H. Hutchison by a written lease for the term from March- 1, 1910, to March 1, 1912, which was at some time not shown extended to March 1, 1918. In the fall of 1912 Hutchison sowed eighty acres to wheat, and on December 20 of that year he executed to the Bank of Denton.a chattel mortgage on his interest in the crop, stated to be an undivided three-fifths. The crop was harvested by Jesch, the owner of the land. The bank sued him for the value of the tenant’s share (less the expenses of harvesting) claimed by it under its mortgage, and recovered a ‘judgment, from which he appeals.
The defendant maintains that as the lease contained no
1. The general law on the subject of the rights of the off-going tenant with respect to the waygoing crop is thus stated:
“At common law, where land is leased for a number of years, and consequently the period of its determination is fixed, and the lease is silent as to who shall bé entitled to the growing crops on the land at the end of the term, the outgoing tenant is not entitled to such crops. Where, however, the lease, expressly or by implication, recognizes the right of the tenant to sow in the last year of the term, the general rule is that he has a right to harvest the waygoing crop, where the lease is silent as to who is entitled thereto, and where there is an express agreement that' the tenant shall have the waygoing crop he is of course entitled thereto. So in several jurisdictions, by general custom, the tenant is entitled to the waygoing crop, even where such right is not stipulated in the lease.” (24 Cyc. 1069.)
In Delaware, New Jersey and Pennsylvania the common-law rule is held to have been modified by a general custom, of which the courts take notice, of permitting the tenant in some instances to harvest an annual crop sown before the expiration of his lease and maturing afterwards. (See cases cited in notes to the text quoted, and in Note, 9 Ann. Cas. 1139.) Elsewhere if such a custom exists it is given the same effect, but the party relying upon it is required to prove its existence as a part of his case. In the present instance no evidence was given of any local custom, and we can not say as a matter of law that the practice referred to obtains in this state.
2. If the lease, either expressly or by any fair implication to be drawn from its language in view of the surrounding circumstances, had indicated that it was the duty of the tenant to sow wheat each year, or even that the expectation of the parties was that he should do so, his right to harvest the crop might be readily inferred. But no showing was made of any special circumstances affecting the matter, and the contract contained nothing bearing upon the use to be made of the land beyond these provisions regarding the rent to be paid:
“Tenant to give landlord as rent, two-fifths of oats and wheat, and one-half of the corn, same to be delivered to the market free of charge; and two-fifths of all other crops.”
3. Evidence was introduced tending to show these facts, which the court must be deemed to have found: The tenant left the country before the maturity of the crop. In the forepart of June, 1913, the cashier of the bank met Jesch, the owner of the land, and made a demand on him for the wheat.' Jesch asked him if he was the man that was interested in the wheat crop, and he said he was. Jesch then said they would get along all right, and that he would expect him to pay the expenses. The cashier said he would do so. The cashier testified:
“He said I should help him get hands to thresh. . . . He was willing that I should have my part, which was three-fifths, less expenses. There was absolutely no dispute as to my having my interest.”
The plaintiff contends that by his conduct at this time the defendant was precluded from afterwards denying its claim. The defendant maintains that no estoppel could have resulted, because the plaintiff’s position was in no way changed for the worse by reason of anything that had been said. In order for the conversation narrated to operate as a bar to a subsequent denial of the plaintiff’s interest it is not necessary that there should have been a concurrence of all the elements of an estoppel, as the term is usually defined. “Whether the principle
The judgment is affirmed.